A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Monday, 1 September 2008

Florence Hartmann Prosecuted for Contempt

Late last year, Florence Hartmann published her memoir of the International Criminal Tribunal for the former Yugoslavia, where she worked as an assistant to Prosecutor Carla del Ponte for several years. The account, entitled Paix et châtiment, is full of juicy gossip, although of course it is impossible to distinguish fact from fiction in many cases. I learned about secret decisions of the Appeals Chamber concerning disclosure of evidence from Serbia. As an employee of the Tribunal, Hartmann wasn't supposed to divulge these secrets. She might have been in breach of her contract of employment. But the Tribunal has gone a step further, charging her with contempt. She is ordered to appear in The Hague on 15 September 2008: http://www.un.org/icty/milosevic/hartmannf/trialc/order-e/080827.pdf. I'm not sure what they can do if she doesn't show up. I've always been intrigued at how the Tribunal gave itself the authority to prosecute contempt of court, as an ancillary or implied power, because the Statute does not give it any express authority in this area. Under the Statute, it has jurisdiction to prosecute serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. It is not clear to me that publishing a book in Paris fits within this framework.

I am a criminal defence lawyer with several years experience at the ICTY, including working on a team defending against contempt charges. Every criminal court is considered to possess an inherent contempt power. The power extends at least so far as necessary to enforce its lawful orders. This is not a very controversial proposition.

Whether ICTY orders to keep decisions confidential are lawful or not, or whether some public interest policy exception should apply in the circumstances of this case will no doubt be explored by Ms. Hartmann's defence team. However,her chances of success are limited. There is no review of the appeals chamber's decision, and the AC is unlikely to question their own power to keep decisions confidential.

If Ms. Hartmann does not appear, and she has been properly served with notice to appear, then an arrest warrant would issue, and I think the authority who served notice on Ms. Harmann to appear would also execute the arrest warrant if requested by the ICTY. In any event, I imagine she will appear and fight the charges.

Both answers fail to come to grips with Prof. Schabas's insightful observation that the ICTY has, to use my own (blunter) language, been bluffing its way ahead in matters of contempt. Rule 77 begs the question about the Tribunal's contempt power, it does not answer it. And the reference to "inherent powers" is also question-begging, for who is to say what is inherent to an unprecedented institution, such as the ICTY, which operates outside of (though not necessarily above) state laws on the basis of a Security Council resolution. The two commentators before me apparently are not aware that the transfer agreements which the ICTY has in place with the US, Australia, and other countries, and in particular with France, authorize arrest and transfer only in relation to the Tribunal's statutory crimes, without any provision whatsoever for the offence of contempt of court. (You will find these agreements at the ICTY's website.)

Ms Hartmann would be well advised not to submit to the authority of the Tribunal. There is no legal basis on which she may be arrested for non-compliance with a subpoena to appear. The laws of France, and of any other law-respecting country where she may happen to be, should protect her. The fact that we (I say "we" because I once worked at the ICTY) were able to have people arrested and transferred to the ICTY from parts of the former Yugoslavia, whether for violation of confidentiality orders or for refusal to appear as witnesses, was merely a happy (for us) combination of bluffery and a compliant local administration which went out of its way to please the Tribunal--and which did not care, particularly, about the rights of its citizens. It is different with countries where the law counts for something. Once, we tried our old trick on the United States. It concerned a man on US soil (he wasn't even a US citizen) who had violated a subpoena to appear as a witness. We issued an indictment for contempt and an arrest warrant. The US called our bluff, and told us, in no uncertain terms, to get lost.

I agree with the previous two commentators. The main problem with both the Tribunals is the large number of 'kids' employed who with no real practical experience whatsoever 'creating' laws and agreements.As for Alexander's comments, I personally would classify them as immature. The issue of inherent powers has been dealt with in detail by both ICTY and ICTR. Look at the jurisprudence.Does anyone know WHY the transfer agreements DID NOT provide for the transfers for contempt etc? It was because the 'kids' mentioned above created those agreements. Kids recruited based on certain criteria that I prefer not to elaborate upon.As far as Florance is concerned, she gave a solemn undertaking not to divulge confidential information she comes accross in the course of her work. She did. So the consequence MUST follow.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.